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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Wednesday, August 28, 2013

Of Texas Community Supervision, a Motion for New Trial and Passing out in the Whataburger Drivethrough

Two of the things your humble correspondent loves are:

  1. The Effect of a Motion for New Trial on the Finality of a Judgment; and
  2. The food at Whataburger, which really is a Texas Treasure.
This case has both.

Jerry Paul Lundgren had been convicted of driving while intoxicated in 2009.  On January 7, 2011, his case was plea-bargained in a Wise County Court at Law at the county seat, Decatur. He was sentenced to 365 days confinement, suspended for 18 months while he was on community supervision (adult probation). Two conditions of the probation were that Lundgren was not to commit any new offenses nor to drink any alcohol. The court said Lundgren's probation was to start that day-- January 7, 2011-- and it was quite clear from what Lundgren was told from the bench and in his plea paperwork that he was giving up his right to appeal.

January 14, 2011, Lundgren, like many Texans, heard the siren song of Whataburger, and unfortunately for him, he passed out in a silver truck in the drivethrough lane, flunked a field sobriety test and found himself being escorted back to the jail for DWI.

On January 19, 2011, he filed a notice of appeal of the January 7 judgment. On January 28, 2011, he filed a motion for new trial, which, under Texas Rule of Appellate Procedure 21.8(c,) was overruled by operation of law on March 23, 2011. On February 18, 2011, the State filed a motion to revoke his probation because he had committed a new offense and had drunk alcohol. On March 3, 2011, the Second Court of Appeals in Fort Worth dismissed his appeal for lack of jurisdiction (Remember, on January 7, he had given up his right to appeal.). Fort Worth issued its mandate in the case May 2, 2011.

June 22, 2011 the trial court entered a “Post Mandate Enforcement of Prior Judgment of Conviction Sentence Suspended,” starting the sentence that same day. It correct the judgment two days later, to add a driver's license suspension that had been in the original January 7 judgment, but which had been left out of the June 22 judgment. It, too, said that the new sentence started June 22. On July 13, 2011, Lundgren filed a motion to quash the State's motion to revoke because the January 7 judgment had not been final on January 14. He also moved to suppress the evidence against him from the Whataburger incident (It is much easier to arrest a person and get evidence against such a person if the person is on community supervision. Such a person has given up privacy protections that ordinary people have not given up.). The trial court denied the motion to suppress, found that Lundgren had violated his community supervision conditions, revoked his community supervision, and sentenced him 300 days in jail. Lundgren appealed.

The panel in this case was Justices Lee Ann Dauphinot, Sue Walker, and Lee Gabriel. Gabriel wrote an opinion that Walker joined. Dauphinot dissented. The majority held that it was absurd that a motion for new trial could retroactively eliminate probation conditions, and, thereby, probation violations. Dauphinot argues that there are many good reasons why a person entering into a no-appeal plea bargain might want to file a motion for new trial, and that Milburn v. State, 201 S.W.3d 749 (Tex. Crim. App. 2006) stands for the proposition that a community supervision judgment could be vitiated by a motion for new trial. She also pointed out that the trial court could have made Lundgren waive his right to a motion for new trial or the judge could have put Lundgren on personal bond with the probation conditions being the bond conditions. That would have worked no matter what the new trial/appellate status of the case would have been.

I would hope that court of criminal appeals would take this case up, but if I had to bet, I don't think they will-- too much of a hot potato, being opposed by Mothers Against Drunk Drivers, etc.

Thanks to the estimable Jim Skelton for hipping me to this case.His Criminal Law Institute is a great source of learning for Texas criminal defense lawyers, and a great value.
Lundgren v. State, ___ S.W.3d ___ (No. 02-12-00085-CR, Aug 22, 2013) (Walker and Gabriel, JJ.) (no pet. h.) 
Lundgren v. State, ___ S.W.3d ___ (No. 02-12-00085-CR, Aug 22, 2013) (Dauphinot, J., dissenting) (no pet. h.)


  1. Texas District and County Attorneys Association on Lundgren:

  2. I'm the lawyer for the Defendant. (Nice write up, by the way.) But today the Court of Criminal Appeals granted our PDR. I'm planning on celebrating with at Whataburger.